Risk in using 245 (k), when I 94 was expired more than 180 days with H1B denial.

Asked over 1 year ago - Chicago, IL

My wife's H1B extension was denied on March 29,2013. She timely filed her extension on July 23rd,2013 while the I-94 was expired on Sept 30,2013.
My I140 was approved in EB1A with current priority dates. Can I apply AOS with 245(k) for my wife? I am worried that its already been more than 180 days since her I-94 has been expired. Please advise.

Attorney answers (3)

  1. Kevin Lawrence Dixler

    Contributor Level 20


    Lawyers agree

    Answered . This is complicated. More information is needed to decide whether she should pursue consular processing or adjustment of status based upon 245(k). This is not the type of question that may be easily answered on Avvo. Sometimes, decisions require good counseling and discretion. Discretion may be the amount of time that the attorney takes to carefully evaluate.

    I strongly recommend an appointment with a competent and experienced immigration attorney, who has the time to evaluate your wife's options.

    She may have an attorney try to argue that she is eligible based upon 245(k), but it is unclear whether consular processing may prove less of a risk, even if it may seem more stressful. If she was engaged in unlawful employment while the change of status is pending, then consular processing may prove unwise.

    This is general information, not legal advice, and does not create an attorney client relationship.
  2. Gen Kimura

    Contributor Level 18


    Lawyers agree

    Answered . I agree with my colleague. Please retain an attorney to review her case.

    This answer is of a general nature and should not be relied upon as final, nor is it intended as legal advice.... more
  3. J. Thomas Smith Ph.D.


    Contributor Level 20


    Lawyers agree

    Answered . I agree with my colleagues.

    Law Offices of J Thomas Smith J.D., Ph.D 11500 Northwest Freeway, Suite 280 Houston, TX 77092 713-LAWYER-2 www.... more

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